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Judge Haden won't force OSM's hand on mine rules

Chief U.S. District Judge Charles H. Haden II on Tuesday again gave federal regulators more time to clean up problems in the state's enforcement of strip mining rules.

Haden declined to immediately order the U.S. Office of Surface Mining to begin to take over the state's abandoned mine cleanup program.

Read Judge Haden's ruling.

(Adobe Acrobat required for .pdf files)

The judge also refused to immediately intervene in OSM's review of two dozen weaknesses in state Department of Environmental Protection rules.

In a 30-page ruling, Haden assured the West Virginia Highlands Conservancy that he would act if regulators miss a new set of self-imposed deadlines over the next two months.

"For more than a decade, OSM was derelict and dilatory in the extreme, but recently, and clearly in response to this litigation, stepped-up agency activity promises a state surface mine regulatory program that conforms to [federal] requirements," Haden wrote.

"Although the court has not granted injunctive relief requested by the Conservancy, it will hold the Federal Defendants to their promises and enforce these dates," he wrote.

In the case, filed in November 2000, Conservancy lawyers focused on a multimillion-dollar deficit in the state's abandoned mine cleanup fund.

Under federal law, coal operators are supposed to post bonds that would cover reclamation costs if they abandon mine sites.

In West Virginia, regulators have never made companies post large enough bonds to cover reclamation. A small per-ton coal production tax has done little to make up the difference.

Today, thousands of acres of abandoned mine sites aren't reclaimed and hundreds of polluted streams go untreated. One study said that the cleanups could cost more than $6 billion over the next 50 years.

For more than a decade, the state has ignored OSM orders to address the problem. OSM has done little to force the state's hand.

In August 2001, Haden ruled that OSM had "unreasonably delayed" action to take over the state's reclamation program. Haden did not order any reforms because OSM and the state had promised to improve .

In Tuesday's ruling, Haden recalled his previous statement that OSM inaction had contributed to a "climate of lawlessness" in the state.

"When the state persists in ignoring federal authority without legal consequence, the climate of lawlessness that results is not repaired once the agency action is finally taken," the judge wrote in a footnote. "Only a persistent pattern of timely and forceful federal agency action will overcome the perception the enforcer is toothless."

Last year, Gov. Bob Wise proposed and lawmakers approved an increase in the coal tax that funds abandoned mine cleanups. The tax would increase from 3 cents per ton to 14 cents per ton for the next three years, and then drop to 7 cents a ton after that.

In late December, OSM approved the tax increase.

OSM declined to rule on whether the state's proposal met a broader federal requirement: Providing enough money to clean up all currently abandoned mine and all sites that might someday be abandoned.

OSM said that its own preliminary study showed that the tax increase was not a long-term solution.

Federal officials extended the public comment period on the state's proposal. OSM promised that it would make a final decision by May 28.

Lawyers for the Conservancy argued that OSM could not approve the state's plan if the plan fixed only part of the reclamation program's problems. Federal law says that OSM shall not approve state program changes unless those changes meet the minimum federal requirements.

OSM lawyers said that the agency relied on an internal policy - one never subjected to public review or comment - that allowed partial approval.

Conservancy lawyers argued that OSM's partial approval rule "could lead to infinitely small and unending improvements, never reaching a statutorily satisfactory end."

Haden sided with OSM.

"While that potential exists, OSM has promised to make its final and determinative decision by May 28, 2002, so the spectre Plaintiff raises is unreal," the judge wrote. In fact, Haden said, the May 28 deadline "hastens the timetable" OSM previously set of June 29.

Haden wrote that that reclamation fund issue "is dauntingly complex." He praised the Conservancy for its "heavy lifting ... producing figures and proposing answers to the question, what will constitute sufficient ... funds.

"It is obvious this citizen suit has jump-started long overdue state and federal agency action," Haden wrote. "With these processes on the fast track toward a positive outcome, thanks to the Plaintiff's well-placed pressure and persistence and the agencies' response to that pressure, it would be unfortunate to interfere and throw a monkey wrench into the fast track's works."

In his ruling, Haden also declined to force OSM action on 25 weaknesses federal officials have identified in West Virginia's strip mine enforcement.

Among other things, the weaknesses concerned flood control, blasting limitations, replacement of residential water supplies damaged by mining, and post-mining land uses.

DEP officials have been under orders to fix those weaknesses, in some cases, since at least 1985. Other problems dated to the early 1990s.

Under federal law, states have 60 days to submit proposals to fix problems that OSM identifies. OSM then has 30 days to approve or reject those proposals. Those time limits passed long ago on the issues raised in the lawsuit.

But OSM, Haden noted, promised to approve or reject DEP's proposals by May 1. If they are not, OSM has said, it will begin proceedings to takeover those parts of the state program by May 15.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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